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TMI Blog2016 (4) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... ction therof, had participated in the auction from the general category. Since he had participated in the auction and was unsuccessful, it was not open to him to claim the privilege after the auction was conducted. We notice that, the fourth respondent had challenged the denial of preference to him before this Court in earlier W.P.. In the said writ petition an interim order had been granted by this Court staying confirmation of the auction that was conducted on 5.3.2014. It is clear from the conduct of the fourth respondent that he had challenged the proceedings of the auction without any delay and had obtained interim orders against confirmation thereof. The said writ petition was disposed of by Ext.P3 judgment, with the appellant also on the party array, directing the first respondent to consider and take a decision in the matter after hearing all the parties. Having suffered Ext.P3 judgment pursuant to which the first respondent had considered the rival contentions of the appellant as well as the fourth respondent and decided the issues, it is not open to the appellant to contend that the fourth respondent should be held disentitled to the preference claimed by him for the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders. Accordingly, the first respondent conducted an enquiry and passed Ext.P2 order revoking the order of suspension. It has also been ordered in Ext.P2 that the second respondent shall restore the privilege and license of the toddy shops to him with immediate effect. 3. In the above circumstances, since the Abkari year was ending, the Government issued a notification proposing to auction the privilege to conduct various toddy shops including those that were licensed to the fourth respondent. Various persons including the appellant submitted applications in response to the said notification. The fourth respondent on the other hand sought for the issue of a preference certificate to him. Since such a certificate was denied to him he also participated in the auction that was conducted, as a general candidate. The successful bidder was finally decided by drawing of lots and the appellant became the successful bidder. Accordingly he was granted a provisional license. In the meanwhile, the fourth respondent filed WPC 6380/2014 challenging the denial of preferential right to him. In the said writ petition, this Court granted an interim order against confirmation of the sale in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of preferential right had been declined. He accepted the action, participated in the auction that was conducted but, was not successful. At the same time the appellant became the successful bidder. After having participated in the auction that was conducted, from the general category, it is contended that it is not open to the fourth respondent to claim the preferential right again. Having accepted the position that he was not entitled to any preference and having been unsuccessful in the auction that was conducted, he had approached this Court challenging the entire proceedings. It is contended that the above aspect has not been noticed by the learned Single Judge. It is next contended that, this Court had in Ext.P3 judgment directed the first respondent to consider the question of entitlement of the fourth respondent for preferential right. However, the same was not considered in Ext.P4. It was for the said reason that the order was challenged in WPC 14191/2014. As per Ext.P5 judgment, the order of the first respondent was set aside and the said authority was directed to consider the matter afresh. However, Ext.P8 order does not disclose any such consideration. The first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to conduct the toddy shops up to the end of his license period. Therefore, there was no justification for the denial of the preference to which he was legitimately entitled. In answer to the contention that this Court had in Ext.P2 declined to grant a declaration that the fourth respondent would be entitled to preference, it is pointed out that a similar contention has been rejected by this Court in Ext.P8 judgment. According to the learned counsel, since all further proceedings on the basis of the crime that has been registered has been stayed and the cancellation of his license kept in abeyance, his right for being given preference has revived. No specific declaration to the said effect was necessary. The above aspect has been correctly taken note of by the first respondent. Therefore, according to the counsel there is no infirmity in the impugned order. The learned Single Judge was hence, fully justified in dismissing the writ petition. 7. The Govt. Pleader who represents respondents 1 to 3 has sought to justify the impugned order Ext.P10 by pointing out that the first respondent has considered all the contentions raised before the said authority in the proper perspective. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been cancelled by Ext.P8 order. 9. Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 reads as under:- 5. The Grant of privilege of vending Toddy shall be subject to the following conditions, namely:- (1) (a) While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the year [2013-14], provided no Abkari case is registered against him other than under Section 56 of the Abari Act. The licensees who has conducted the shops during [2013-14] and whose licenses cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference. According to the learned Counsel for the appellant, for the purpose of the above provision, it is sufficient that an abkari case is registered against the former licensee. In the present case Crime, No. 472/2013 has admittedly been registered against the fourth respondent. The crime has been registered alleging offences under Section 55(a) (i) of the Abkari Act. Therefore, according to the counsel, an offence other than one under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst respondent in these writ petitions, shall issue notice of hearing to the petitioners as also the party respondents before passing orders invoking the powers under Rule 5 (15) of the Rules in respect of the aforementioned shops and pass orders only after considering the question of entitlement of the petitioners for preferential right under Rule 5(1)(a) of the Rules and subject to such decisions. It will be open to the party respondents to raise all their contentions resisting the claim of the petitioners for preferential right under Rule 5(1)(a) of the Rules, before the first respondent. Orders in the matter shall be passed expeditiously, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. 12. Accordingly, the rival contentions were considered by the first respondent and a decision was taken to grant privilege to the fourth respondent as per Ext.P4. Ext.P4 was the subject matter of challenge in WPC 14191/2014 at the instance of the appellant herein. By Ext.P5 judgment, Ext.P4 was set aside and the first respondent was directed to consider the issues afresh. Ext.P8 is the order passed pursuant to the said direction. Though it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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